U.S.

Department of Justice
Executive Office for Immigration Review

Board of Immigration Appeals

Office <lthe Clerk
5107 leeJburg Pike, Suite 2000
Falls Church. Virgima 20530

OHS/ICE Office of Chief Counsel - KRO

18201 SW 12th St.
Miami, FL 33194

CORAL GABLES, FL 33146

Name: UMANZOR CABRERA, EDWIN E...

A 036-411-408

Date of this nQtice: 12/11/2014

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

[)OnttL {!t1/v\J
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Holmes, David B.

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Edwin Esnit Umanzor Cabrera, A036 411 408 (BIA Dec. 11, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

REBECCA SHARPLESS, ESQUIRE

UNIVERSITY OF MIAMI SCHOOL OF LAW
IMM. CLINIC
1311 MILLER DRIVE, E-256

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Qffice ofthe Clerk
5 /07 /,eesburg Pike. S1111e 2000
Fall. Church. I 1rgmia 20530

OHS/ICE Office of Chief Counsel - KRO

A036-411-408
BAKER COUNTY
P.O. BOX 1629

18201 SW 12th St.

Miami, FL 33194

MACCLENNY, FL 32063

Name: UMANZOR CABRERA, EDWIN E ...

A 036-411-408

Date of this notice: 12/11/2014

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy.

Your attorney or representative has been served with this

decision pursuant to 8 C.F.R. 1292.S(a).

If the attached decision orders that you be

removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Sincerely,

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Holmes1 David B.

Userteam:

Cite as: Edwin Esnit Umanzor Cabrera, A036 411 408 (BIA Dec. 11, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

UMANZOR CABRERA, EDWIN ESNIT

\_.

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board oflmmigration Appeals

Falls Church, Virginia 20530

File:

A036 411 408 - Miami, FL

Date:

DEC 112014

In re: EDWIN ESNIT UMANZOR CABRERA a.k.a. Edwin Esnet Umanzor

a.k.a. Edwin Cabrera a.k.a. Vmanzor E. Edwin a.k.a. Edwin Esnit Umanzor-Cabrera

APPEAL
ON BEHALF OF RESPONDENT:
ON BEHALF OF DHS:

Rebecca Sharpless, Esquire

Michael A. Mansfield
Assistant Chief Counsel

APPLICATION:

Termination

The respondent, a native and citizen of Honduras, has appealed from the Immigration
Judge's decision, dated August 12, 2014.

The Department of Homeland Security (DHS) has

filed a motion for summary affirmance, which is denied. The respondent's fee waiver request is
granted. See 8 C.F.R. 1003.8(a)(3). The record will be remanded to the Immigration Court for
further proceedings as discussed below.
We review the findings of fact made by the Immigration Judge under a "clearly erroneous"
standard.

8 C.F.R. 1003. l(d)(3)(i).

We review questions of law, discretion, and judgment

under a de novo standard. 8 C.F.R. 1003.l(d)(3)(ii).

The respondent was admitted as a lawful permanent resident in 1979. On May 5, 2011, he
was convicted in the Circuit Court of the Sixteenth Judicial Circuit in and for Monroe County,
Florida, for the offense of violation of injunction, committed on or about March 10, 2011, in
violation of Fla. Stat. Ann. 784.047 (l.J. at 2; Exh. 1).

The DHS placed him in removal

proceedings, charging him removable under section 237(a)(2)(E)(ii) of the Immigration and
Nationality Act, 8 U.S.C. 1227(a)(2)(E)(ii).

The respondent admits that he was convicted

under Fla. Stat. Ann. 784.047 but denies that he is removable under section 237(a)(2)(E)(ii) of
the Act by virtue of that conviction.
The Immigration Judge found, and the record shows, that the respondent was convicted
under Fla. Stat. Ann. 784.047(1) for refusing to vacate the dwelling which he shared with

an

individual described as a roommate, after he was served with an Injunction for Protection
Against Repeat Violators issued pursuant to Fla. Stat. Ann. 784.046 (l.J. at 4; Exh. 2).

The

respondent argues on appeal that he is not removable under section 237(a)(2)(E)(ii) of the Act
because the injunction in his case was not a "protection order" as defined in that statute (Resp.
App. Brief, at 5-12).
Section 237(a)(2)(E)(ii) of the Act defines the term "protection order," for purposes of that
statute, as "any injunction issued for the purpose of preventing violent or threatening acts of

Cite as: Edwin Esnit Umanzor Cabrera, A036 411 408 (BIA Dec. 11, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

A036 411 408

domestic violence" (emphasis added). Therefore, to be removable under section 237(a)(2)(E)(ii)

of the Act, the respondent's violation must have involved an injunction issued for the purpose of
preventing domestic violence.

The Immigration Judge acknowledged this definition of

"protection order" and analyzed the terms of Fla. Stat. Ann . 784.046 and 784.047 (I.J. at 3-4).
However, the Immigration Judge's decision did not determine whether the injunction in the
respondent's case was a "protection order" as defined in section 237(a)(2)(E)(ii) of the Act.
injunction in the respondent's case was issued for the purpose of preventing "domestic violence,"
1
such that it was a "protection order" as defined in section 237(a)(2)(E)(ii) of the Act. In light of
our decision, we need not reach other arguments raised in the respondent's pro se appellate brief
filed on October 2, 2014.
ORDER:

The record is remanded to the Immigration Court for further proceedings

consistent with this order, and for the en

of a new decision.
\

FOR THE BOARD

We agree with the Immigration Judge, however, that the respondent violated the portion of
an injunction that involved "protection against credible threats of violence, repeated harassment,
or bodily injury" as required in section 237(a)(2)(E)(ii) of the Act (1.J. at 4-5). The respondent
argues that the conduct involved in his conviction (i.e., refusing to vacate the dwelling that the
parties shared, under Fla. Stat. Ann. 784.047(1)) is not inherently violent and does not involve
"credible threats of violence, repeated harassment, or bodily injury," therefore his conviction
falls outside the scope of section 237(a)(2)(E)(ii) of the Act (Resp. App. Brief, at 13-16).
The respondent acknowledges that this position is contrary to the Board's decision in Matter
of Strydom, 25 I&N Dec. 507 (BIA 2011), which is consistent with the decisions of the
United States Court of Appeals for the Ninth Circuit in Szalai v. Holder, 572 F.3d 975 (9th Cir.
2009), and Alanis-Alvarado v. Holder, 558 F.3d 833 (9th Cir. 2009). The respondent argues that
these cases were incorrectly decided because mere contact and physical proximity (such as the
conduct prohibited under Fla. Stat. Ann . 784.047(1), (2), or (5)) do not inherently involve
violence or credible threats of violence, repeated harassment, or bodily injury (Resp. App. Brief,
at 15). However, as discussed in Matter of Strydom, section 237(a)(2)(E)(ii) of the Act does not
inquire whether the respondent actually had engaged in violent, threatening, or harassing
behavior (which may be covered by a different criminal statute and subject to a different ground
of removability), but whether he violated the "portion of a protection order" that protects against
such behavior.

Matter of Strydom, supra, at 509-11.

The respondent presents no persuasive

argument showing that this interpretation is in error, except that he argues that a domestic
violence protection order can be issued without showing a prior violence under the Florida law
(Resp. App. Brief, at 15). Since this argument relates to a protection order under a different
statute not involved in the respondent's case, i.e., Fla. Stat. Ann. 741.30, it is not pertinent in
the respondent's case. Therefore, we conclude that the Immigration Judge correctly applied the
principle set forth in Matter ofStrydom, supra, in this case.

Cite as: Edwin Esnit Umanzor Cabrera, A036 411 408 (BIA Dec. 11, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

Therefore, we will remand the record to the Immigration Judge to determine whether the

U N ITED STATES DEPARTME NT O F JUST I CE

EXECUT IVE O F F I CE FOR IMM IGRA T I O N REV IEW
U N ITE D STATES IMM I GRAT I O N C OURT
M IAM I, FLOR IDA

In the Matter of

EDW I N ES N IT UMA NZ OR CABRERA

RESPO N DENT

)
)
)

I N REMOVAL PROCEE D I N GS

)
Section 237(a)(2)(E)(ii) of the Immigration and Nationality
Act (Act) -- A violation of an order of protection that involves
protection against credible threats of violence! repeated
harassment1 or bodily injury to the person or persons for whom the

CHARGES:

protection order was issued.

APPL I CAT I ONS:

Motion to terminate.

O N BEHAL F O F RESPO N DE N T: PRO SE

O N BEHAL F O F DHS: M I C HAEL A. MANS F IELD

ORAL DE C IS IO N OF T HE IMM IGRAT I O N JUDGE

The Department of Homeland Security (Department) issued a Notice to
Appear dated July 201 20 12, which was filed with the Immigration Court on or about
August 11 20 121 placing the respondent in removal proceedings.
This document alleges that the respondent is not a citizen or national of
the United States. It further alleges that he is a native and citizen of Honduras. It
further alleges that he was admitted to the United States at or near Miami, Florida, on or

Immigrant & Refugee Appellate Center | www.irac.net

August12120 14

File: A036-41 1-408

about March 22, 1979, as a lawful permanent resident.

It further alleges that on March 10, 201 1, he was enjoined under a

Monroe County, State of Florida.

It further alleges that on May 5, 20 1 1, the aforementioned court
determined that respondent had engaged in conduct that violated a portion of that order
that involved protection against credible threats of violence, repeated harassment or
bodily injury to the person or persons for whom the protection order was issue. Lastly, it
alleges that on May 5, 20 1 1, he was convicted in the Circuit Court of the Sixteenth
Judicial Circuit in and for Monroe County, State of Florida, for the offense of violation of
an injunction and resisting officer without violence, in violation of Florida Statutes
784.047 and 843.02, under case number 08-MM-000231-P.
The respondent appeared before the Court on or about September 1 1,
20 12, and the matter was adjourned for him to seek legal representation. The matter
was administratively closed on or about September 25, 20 12, because he was no
longer in OHS custody. Then there was a motion made by the Department to re
calendar the matter. The matter was set for another master on September 17, 20 14.
We ended up having another master on the 17th of July of 2014. Again, the matter was
adjourned for him to seek legal representation and also to talk about his custody
situation. Then on July 29, 20 14, pleadings were taken and the respondent, appearing
without counsel, admitted the truth of the allegations.
The respondent denied removability on the basis that he was not
removable under Section 237(a){2)(E){ii) of the Act. The matter was adjourned for the
Court to look into the issue of removability.
On today's date, the Court has determined that the respondent is

l\036-411-408

August "\2, 20"\4

Immigrant & Refugee Appellate Center | www.irac.net

protection order issued by the Circuit Court of the Sixteenth Judicial Circuit in and for

'

removable as charged and the Court looked into forms of relief for the respondent. The
Court sees no viable claim for asylum or withholding of removal under the Act or under
the Convention. The only reason the respondent does not wish to go back is because

is not a basis for asylum or withholding of removal under the Act, o r under the
Convention Against Torture.
The respondent also wished to apply for adjustment again. His mother is
a U.S. citizen and she would be willing to file an alien relative petition on his behalf.
However, this would be under the first preference and an immigrant visa is not
immediately available to the respondent. It looks like they are working on cases that
were filed in April of 2007. So the Court see no relief available to him, the motion to
terminate made by the respondent is denied by the Court.
I want to talk about the issue of removability and why the Court
determined that he is removable as charged. To determine whether the respondent's
conviction fits within the statutory definition of a removable offense, the Court needs to
employ, first, a categorical approach and, if allowable, then a modified categorical
approach. See Fajado v. U.S. Attorney General, 659 F.3d 1303 ( 1 1th Cir. 20 1 1); see
also, Taylor v. United States, 495 U.S. 575 ( 1990).
Section 237(a)(2)(E)(ii) of the Immigration Act provides the following. Any
alien who at any time after admission is enjoined under a p rotection order issued by a
court and whom the court determines has engaged in conduct that violates the portion
of a protection order that involves protection against credible threats of violence,
repeated harassment, or bodily injury to the person or persons for whom the protection
order was issued is deportable. For purposes of this clause, the term protection order
means any injunction issued for the purpose of preventing violent or threating acts of

A036-4 1 1-408

August 12, 20 14

Immigrant & Refugee Appellate Center | www.irac.net

he has been here for most of his life, he has no relatives there to help him out, but that

domestic violence, including temporary or final orders issued by civil or criminal courts
(other than support or child custody orders or provisions), whether obtained by filing an
independent action or as a pendente lite order in another proceeding.

Florida Statute 784.047(1) which states the following: A person who willfully violates an
,

injunction for protection against repeat violence, sexual violence, or dating violence,
issued pursuant to Section 784.046, or a foreign protection order accorded full faith and
credit pursuant to Section 741.315 by ( 1) refusing to vacate the dwelling that the parties
share, commits a misdemeanor of the first degree punishable as provided in Section
775.082 or 775.083.
The record of the respondent's conviction contains a copy of the
information which indicates that he was charged pursuant to Section 784.047(1) of the
Florida statute. Thus, his conviction relates to protection against repeated violence,
sexual violence, or dating violence, orders that were issued pursuant to Florida Statute
784.046. To be a categorical match to a violation of a protective order pursuant to
Section 237(a)(2)(E)(ii) of the Act, the respondent's violation of the protective order
must have involved protection against credible threats of violence, repeated harassment
or bodily injury. An order of protection against repeat violence, sexual violence and
dating violence categorically falls within Section 237(a)(2)(E)(ii) of the Act because it is
more narrow than what is covered by the Act, which also includes repeated harassment.
The Florida statute, on the other hand, is meant to protect against repeated violence,
sexual violence and dating violence, which are all forms of credible threats of violence
and bodily injury. Thus, a conviction under Florida Statue 784.047(1) would
categorically be a conviction for violation of a protective order pursuant to Section
237(a)(2)(E)(ii) of the Act. See Szalai v. Holder, 572 F.3d 975 (9th Cir. 2009); and

A036-4 11-408

August 12, 20 14

Immigrant & Refugee Appellate Center | www.irac.net

The respondent was convicted for violating a protective order pursuant to

Alanis-Alvarado v. Holder, 558 F.3d 833 (9th Cir. 2009). The first case confirmed the
conclusion that a violation of a no contact provision was covered by Section

injunction against telephoning the domestic partner in the context of domestic violence
.
protective order involves protection against violence, threats or harassment even if it is
possible that the offender's conduct did not independently constitute violence, threats or
harassment. The Court emphasizes there was no requirement in Section
237(a)(2)(E)(ii) that the respondent actually had engaged in violence, threatening or
harassing behavior, noting that it only requires a violation of the portion of the protection
order that involves protection against credible threats of such conduct. Therefore,
based on the foregoing, the Court must conclude that respondent's violation of an order
of protection issued by the Florida court makes him removable under Section
237(a)(2)(E)(ii) of the Act.
The Court sees no relief available to the respondent, including the issue of
voluntary departure, which respondent declined to apply for, and therefore the following
order must be entered:
OR DER
IT IS HEREBY OR DERE D that the respondent's motion to terminate these
proceedings be denied;
IT IS F URTHER OR DERED that respondent be removed from the United
States to Honduras pursuant to the charge in the Notice to Appear.

Please see the next aaqe for electronic

signature

A036-4 1 1-408

August 12, 20 14

Immigrant & Refugee Appellate Center | www.irac.net

237(a)(2)(E)(ii) of the Act. In the Alanis case, the Court specifically stated that an

'
.

'

'

ADAM OPACIUCH
Immigration Judge

Immigrant & Refugee Appellate Center | www.irac.net

A036-411-408

August 12, 2014

<i/l

.',
f
'

//s//
Immigration Judge ADAM OPACIUCH
opaciuca on September 30,

2014 at 11:49 AM GMT

Immigrant & Refugee Appellate Center | www.irac.net